‘‘No political appointee at any level shall be a voting delegate or be voted for at the Convention or Congress of any political party for the purpose of the nomination of candidates for an election’’. For effect and to fortify this paragraph of the Act, S. 84 provides that ‘‘Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue’’.
Let it be stated at once that the matter of eligibility to contest elections is a constitutional one. Sections 131 of the 1999 constitution sets out the qualifications to contest elections while Section 137 sets out the disqualifications. Any person that meets the qualifications and is not caught by the disqualifications so explicitly laid out, is eligible to contest and cannot be excluded by any other law or authority.
S.137 of the Constitution provides inter alia that ‘‘a person shall not be qualified for election to the office of President if –S.137 ‘‘being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election’’.
Thus S. 84 bars political appointees , including Ministers, from participating in their party’s primaries, and pro tanto, from contesting elections, while S.137 provides that they could contest elections if they resign 30 days to such elections. There is therefore a conflict between legality and constitutionality, or to be more specific, a conflict between S. 84 of the Electoral Act and S.137 of the Constitution.
A constitutionally vested right cannot be taken away or overridden by an Act of the National Assembly, for by S.1 of the Constitution, any other law, including an Act of the National Assembly that is inconsistent with the provisions of the Constitution is void to the extent of such inconsistency.